HKSAR v. Chan Chun Sing, Wilson

DCCC 906/2020

[2021] HKDC 303

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 906 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1] (charge 1) and one charge of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance[2] (charge 2).

2.Full details of the offences are set out in the amended summary of facts admitted by the defendant today. 

3.In summary on the night of 9 April 2020 Mr Zhuang parked his motorcycle, registration mark RB 361, valued at about $36,000, on the pavement at Hing Tin Street in Lam Tin.  The next morning, 10 April, Mr Zhuang reported that his motorcycle had been stolen. 

4.In the evening of 17 April 2020 the police acting on intelligence observed motorcycle bearing registration mark UR 7346 which was parked in Kowloon City.  At 2030 hours the defendant and his girlfriend approached the motorcycle. 

5.The police intercepted the defendant when he started the engine.  Under caution and in a video recorded interview the defendant admitted that around a week ago in Kowloon City he saw a key inserted in a motorcycle and out of greed drove the motorcycle away. 

6.Investigation revealed that the chassis number of the motorcycle was the chassis number of RB 361 and not UR 7346.

7.There was no insurance policy in force in relation to the defendant’s driving of the motorcycle.   

Mitigation

8.In passing sentence, I have carefully considered everything said on behalf of the defendant by Ms Wu including that the defendant, who is 40, lives with his mother and works as a transportation worker[3].

9.I take into account the defendant is the only person who takes care of his mother.  I have read the mitigation letter written by the defendant’s mother who describes her hard life and asks for a chance for her son so he can return home soon to take care of her.  

10.I have also read the letter written by the defendant’s employer who speaks highly of the defendant and asks for a lenient sentence so the defendant can start afresh.

11.I take into account that the death of the defendant’s brother who was only 42, in January this year has made the defendant realise that he cannot spend the rest of his life in and out of prison and is determined to reform himself[4].

12.I take into account that the defendant’s previous similar convictions were in 2009 and that since that time the defendant has only been before the court in 2012 when he was sentenced to 5 months’ imprisonment for perverting the course of justice and in 2018 and 2020 for gambling when he was fined.

Theft of vehicle

13.There are no guidelines for offences of theft of vehicles, each case depending on its own facts.  Deterrent sentences are nevertheless required.   As was said in HKSAR v Cheng Chun Ming[5]:

“Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime.”

14.Ms Wu refers the court to HKSAR v Fan Chi Wai where leave to appeal against sentence of 2 years and 6 months’ imprisonment was refused for handling a stolen motorcycle worth some $40,000 and which had been modified so no ignition key was required[6].

15.Ms Wu seeks to draw a distinction between handling stolen goods and theft by reason of the fact that handling stolen goods has a higher maximum sentence and that the present theft was opportunistic; the value of the motorcycle was slightly less and the defendant did not make any modifications to the motorcycle[7].

16.Taking into account all the circumstances of the theft including the value of the motorcycle was about $36,000 and that the prosecution proceeds on the basis that the defendant was not the one who stole the motorcycle from where Mr Zhuang parked the motorcycle and that the defendant was not the one who changed the number plates, I am satisfied the proper starting point after trial is 2 years’ imprisonment. 

17.Having no third party insurance, which places all other road users at risk, is an aggravating feature of the theft.   In the circumstances I enhance the starting point by 3 months to 2 years and 3 months’ imprisonment. Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 6 months’ imprisonment. 

Using a motor vehicle without third party insurance

18.Taking into account this is the defendant’s second conviction for using a motor vehicle without third party insurance, I am satisfied a prison sentence is appropriate.  Adopting a starting point of 3 months’ imprisonment the defendant is given full credit for his plea of guilty which reduces the sentence to 2 months’ imprisonment. 

Totality

19.Having taken into account the defendant used the motorcycle without third party insurance in aggravation of the theft, I am satisfied concurrent sentences are appropriate. 

20.The defendant is convicted and sentenced to concurrent sentences of 1 year and 6 months on charge 1 and 2 months’ imprisonment on charge 2. 

Disqualification

21.By virtue of section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance unless the court finds special reasons there is mandatory disqualification for using a vehicle without third party insurance of not less than 12 months nor more than 3 years from the date of conviction.  There are no special reasons in this case.

22.Taking into account this is the defendant’s second conviction for using a motor vehicle without insurance, I am satisfied that a period of 18 months’ disqualification is appropriate.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 18 months from today.